Soko v The State [1991] FJHC 18; Haa0011.1991 (14 February 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 11 OF 1991

Between:

TAITO SOKO
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Hettige for the Respondent

JUDGMENT

The appellant pleaded guilty to Damaging Property and Common Assault in the Suva Magistrate Court. Upon his conviction he was fined $175 in default 3 months imprisonment and $30 in default 6 weeks imprisonment respectively, making a total fine of $205. The learned trial magistrate further ordered that compensation of $150 and $15 be paid out of the fines imposed to the respective complainants.

The appellant now appeals against the sentence on the ground that it is harsh and excessive; that the damage caused had been repaired and that he has reconciled with the complainants.

The facts of the case are fairly short. The appellant and his wife are tenants in a house belonging to the 1st complainant and in which the 2nd complainant also shares a room. On the day in question the appellant after having some drinks returned to his room to find his wife missing. He later saw her in the 2nd complainant's room. When she refused to come out of the room presumably at the appellant's urging he in anger punched the door of the room damaging it.

The 2nd complainant on seeing the damaged door not unreasonably told the appellant to repair the door and she in turn was punched on the forehead and pushed causing her to fall and sustain minor superficial injuries.

The learned trial magistrate without attempting to reconcile the parties as he was entitled to under Section 163 of the Criminal Procedure Code and without ascertaining the ability of the appellant to pay a monetary penalty, merely imposed the fines already mentioned.

It appears as if the learned trial magistrate was overly concerned with compensating the material damage to the door, so much so, that in the relatively more serious offence in Count 2 involving personal violence, a fine approximating one sixth of the fine for Damaging Property on the first count, was imposed.

Furthermore although Section 161 of the Criminal Procedure Code enables a court to order the whole or any part of a fine imposed to be applied in or towards compensation for any loss or injury caused by an offence it is not meant to be the basis upon which the quantum of the fine should be calculated. Nor should such a procedure be used as an alternative to civil remedies.

Fines like prison sentences must bear some proportionate relation to the facts of the offences in respect of which they are imposed and provided that it is not excessive.

In this case the appellant is married, 30 years of age and employed in the Auxiliary Unit of the Fiji Military Forces. He is a first offender and had pleaded guilty to the offences. He earns $158 per fortnight and therefore the total fines imposed represent almost "3 weeks wages". This is a heavy financial burden which is made the more onerous by the 28 days given the appellant in which to pay the fine imposed.

In addition the appellant has since his conviction had a leg amputated and this permanent physical disability must inevitably affect his earning potential if it has not already. He continues to live in the same house as the complainants.

In all the circumstances the sentence on Count 1 must be considered harsh and excessive and is accordingly set aside and in substitution therefor I impose a fine of $25 in default 2 months imprisonment. The fine on Count 2 is entirely appropriate and is upheld as is the compensation ordered thereunder.

The total fine which the appellant must now pay on both counts is $55. He is given a further 28 days within which to pay the fines in default of which he is to be imprisoned for 3 months or until such time as the fines are paid.

(D.V. Fatiaki)
JUDGE

At Suva,
14th February, 1991.